Tasmania v Nelligan

[2005] TASSC 94

[2005] TASSC 94

CITATION:              Tasmania v Nelligan [2005] TASSC 94

PARTIES:  TASMANIA
  v
  NELLIGAN, Ashley Matthew

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  230/2005
DELIVERED ON:  23 September 2005
DELIVERED AT:  Hobart
HEARING DATE:  22 September 2005
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Criminal Law – Particular offences – Offences against the person – Other offences against the person – Acts intended to cause or causing danger to life or bodily harm – Wounding or shooting offences – Mens rea and negligence – Intent to do grievous bodily harm – Whether guilt possible by virtue of criminal negligence.

Criminal Code 1924 (Tas), ss13(2), 150, 152 and 172.
Vallance v R (1961) 108 CLR 56; R v Vallance [1960] Tas SR 51; R v Bennett [1990] Tas R 72, referred to,
R v McDonald [1966] Tas SR 263, followed.
Aust Dig Criminal Law [142]

REPRESENTATION:

Counsel:
           Tasmania:  J N Perks
           Accused:  K Cuthbertson
Solicitors:
           Tasmania:  Director of Public Prosecutions
           Accused:  Legal Aid Commission of Tasmania

Judgment  Number:  [2005] TASSC 94
Number of paragraphs:       12

Serial No 94/2005
File No 230/2005

TASMANIA v ASHLEY MATTHEW NELLIGAN

REASONS FOR JUDGMENT  UNDERWOOD CJ

23 September 2005

1. The indictment, count 1, pleads that the accused committed the crime of committing an unlawful act intended to cause bodily harm, contrary to the Criminal Code 1924, s170. 

1. Briefly stated, the Crown case is that as the complainant approached the accused, the latter discharged three shots from a 12 gauge shotgun.  The first shot was fired into the air, I infer as a warning, but the other two were not.  A pellet from one of the other two shots entered the complainant's eye.  The Crown case is that the accused intended to cause grievous bodily harm to the complainant when he fired one or both of the last two shots.

1. If the jury acquit the accused of the crime charged, the Code, s334A, permits an alternative verdict of guilty of wounding or causing grievous bodily harm.  Given that the evidence is likely to establish that the firing of the last two shots was an intended act, the alternative verdicts could be left to the jury upon the basis that the accused foresaw that grievous bodily harm or wounding was the likely consequence of this act, ie, that the accused was guilty of subjective recklessness.  The authority for that proposition is Vallance v R (1961) 108 CLR 56 and R v Bennett [1990] Tas R 72.

1. However, the Crown does not seek an alternative verdict upon the basis that the mental element in the crimes of wounding or grievous bodily harm is subjective recklessness.  The indictment, count 2, pleads a specific alternative crime, namely that the accused is guilty of causing grievous bodily harm upon the basis that he:

·   had in his charge or under his control a loaded 12 gauge shotgun; and

·   failed to take reasonable precautions against, and to use reasonable care to avoid, endangering human life; and

·   thereby caused James Campbell to suffer grievous bodily harm.

1. Mr Perks, counsel for the Crown, submitted that the crime of causing grievous bodily harm can be committed without proof of intent or subjective recklessness.  He contended that the provisions of the Code, ss150 and 152, apply to the crimes of causing grievous bodily harm and wounding.  Those sections provide:

"150     Duty of persons in charge of dangerous things

It is the duty of every person who has anything in his charge or under his control, or who erects, makes, or maintains anything which, in the absence of precaution or care in its use or management may endanger human life, to take reasonable precautions against, and to use reasonable care to avoid, such danger.

…

152    Omission of duty

A person who without lawful excuse omits to perform any of the duties mentioned in this chapter shall be criminally responsible for such omission if the same causes the death of or grievous bodily harm to any person to whom such duty is owed, or endangers his life, or permanently injures his health."

1. Counsel for the accused, Miss Cuthbertson, submitted that those sections had no application to the crimes of causing grievous bodily harm and wounding and accordingly, the alternative count should be quashed for it pleads no crime known to law.  In essence, her submission was that the Code, ss150 and 152, imposes an objective duty, not a subjective duty, and that Bennett is authority for the proposition that the mental element in the crime of wounding or causing grievous bodily harm is either an actual intent to wound or subjective recklessness.  Therefore, it was submitted, ss150 and 152 have no application to this crime. 

1. Mr Perks submitted that in Vallance and Bennett, the court was concerned with an intentional act by the accused, viz, discharging a firearm, and did not consider the concept of wounding or causing grievous bodily harm by negligent omission as prescribed by s152.  There is no doubt that Bennett is authority binding upon me that the mental element in the crime of causing grievous bodily harm or wounding is an intent to cause grievous bodily harm or wound or subjective recklessness.  There is also no doubt, however, that neither the High Court in Vallance nor the Court of Criminal Appeal in Bennett considered whether those crimes could also be committed by a failure to comply with the duty imposed by the Code, s152.  Ms Cuthbertson submitted that s152 could not have application because of the Code, s13(2), which provides:

"(2)   Except as otherwise expressly provided, no person shall be criminally responsible for an omission, unless it is intentional."

1. Mr Perks met this submission with the contention that s13(2) has no application because ss150 and 152 do otherwise expressly so provide.  All three judgments of the Court of Criminal Appeal in R v Vallance [1960] Tas SR 51, discussed these sections, albeit by way of obiter dicta.  Burbury CJ expressed the view, at 76, that the provisions of the Code, Ch16, created criminal responsibility as an exception to the general rule prescribed by s13(2), and that in an appropriate case they apply to the crime of wounding.  However, he declined to consider this in Vallance because wounding caused by culpable negligence was neither pleaded nor raised at trial.

1. Crisp J took a different view of s13(2), and at 97 – 98 expressed the opinion that the subsection excluded objective negligence from s152.  At 112, Crawford J pointed out that s152 does not create a crime, and so its purpose must be to impose criminal liability for crimes prescribed by other sections.  After noting, also at 112, that s152 could have no application to crimes of specific intent, his Honour said:

"The only crimes to which a general section such as s 152 could apply having regard to the result which must occur before it is applicable, seem to be those created by s 56 i and ii, [now (a) and (b)] s 157(1) iii [now (c)] and s 172.  It seems plain therefore that s 152 was meant to be an exception to s 13(1) (event by chance) and s 13(2) (unintentional omissions) and applicable only to the crimes created by the sections to which I have just referred.  There is no other section to which it could be an exception.  It is literally imposing a criminal liability by an absolute or objective test and not a subjective test."

1. R v McDonald [1966] Tas SR 263 was a case of wounding. At 268 Burbury CJ referred to the obiter dicta in Vallance and held that ss150 and 152 do apply to the crime of wounding.  He said, at 268 – 269:

"But having regard to the whole question in the light of the judgments of the High Court in Evgeniou v The Queen (1964) 37 ALJR 508, I have come to the firm conclusion that s 152 as applied to the several sections in Ch 16 of the Code (including s 150) creates an exception to the principles of criminal responsibility expressed in s 13(1) and (2).  In other words, the provisions of ss 152 and 150 of the Code do constitute provisions 'otherwise expressly provided' for the purpose of s 13(1) and (2).  That is to say that if the accused is guilty of culpable negligence in the common law sense, he is not exculpated because the injury occurs by chance or because his omission was not intentional."

1. Evgeniou concerned the Criminal Code (Qld) (as adopted in Papua New Guinea), s263, which is similar to Tasmanian s13. The court articulated the general principle that exculpation upon the basis that the event (in this case the injury to the eye) occurred by chance, is inconsistent with the concept of criminal negligence.

1. I propose to follow McDonald.  It is consistent with the general views expressed by the High Court in Evgeniou and consistent with a clear legislative intent expressed by the provisions of the Code, Ch16, which impose criminal liability for a breach of the statutory obligations measured by an objective standard.  The application to quash the indictment, alternative count 2, is dismissed.